Sorin v. DOJ, No. 18-99, 2018 WL 6431027 (2nd Cir. Dec. 6, 2018) (per curiam)

Sorin v. DOJ, No. 18-99, 2018 WL 6431027 (2nd Cir. Dec. 6, 2018) (per curiam)

Re:  Request for records concerning requester's criminal prosecution and guilty plea

Disposition:  Affirming district court's grant of government's motion for summary judgment

• Exemption 3:  The Court of Appeals for the Second Circuit relates that "DOJ described the documents it withheld from [the requester] under Exemption 3 as: (1) communications from a law firm to federal prosecutors, accompanying the production of documents requested by grand jury subpoena and discussing the contents of specific subpoenas; and (2) communications from those federal prosecutors to that law firm referencing specific grand jury subpoenas."  The court holds that, "[b]ecause these documents 'tend to reveal what transpired before' the grand jury, . . . the district court properly held that they fall within Exemption 3 and that DOJ was not required to disclose them."
   
• Exemption 5, Attorney Work-Product Privilege:  The Court of Appeals for the Second circuit holds that "DOJ described the documents it withheld from [the requester] under Exemption 5 as: (1) emails sent between various federal law enforcement officials concerning the details of a then-ongoing criminal investigation and associated legal theories and litigation strategies; and (2) attorney-written notes, memoranda, and drafts regarding that investigation and the associated planned prosecutions."  The court holds that "[t]hese documents fall within the work-product privilege as communications within and among federal law enforcement agencies created in anticipation of a criminal prosecution and for the purpose of furthering that prosecution."  "Accordingly, the district court properly held that these documents fall within Exemption 5 and that DOJ was not required to disclose them."
   
• Exemption 7, Threshold:  The Court of Appeals for the Second Circuit holds that "[a]ll of the documents that DOJ withheld under Exemption 7(C) are memoranda describing interviews conducted by a private law firm during the course of an internal investigation of [the requester's] company."  "These documents were acquired by federal prosecutors in the course of a criminal investigation, maintained in a criminal case file, and related to the subject matter of a criminal prosecution."  "They were therefore 'compiled for law enforcement purposes,' . . . although not created by public officials."
   
• Exemption 7(C):  The Court of Appeals for the Second Circuit holds that "the district court properly held that these documents fall within Exemption 7(C) and that DOJ was not required to disclose them."  The court finds that "[t]he documents include the identities of potential witnesses in a criminal investigation – including their professional and educational histories and financial information – along with similar information about employees not interviewed in the internal investigation."  "The privacy interests involved are therefore substantial."  "[The requester] asserts a public interest in accessing these documents to 'assur[e] the accuracy' of a manuscript he prepared regarding his prosecution."  "But the particular use that [the requester] intends for the requested documents is not relevant."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  Responding to the requester's segregability arguments, the Court of Appeals for the Second Circuit holds that, "[w]ith respect to the documents withheld under Exemption 5, work-product privilege protects the entirety of the withheld documents."  "With respect to the documents withheld under Exemption 7(C), DOJ asserted that redaction could not adequately protect the identity of witnesses because their testimony concerned their specific roles at the company under investigation."  "With respect to the documents withheld under Exemption 3, DOJ asserted that redaction would have left no meaningful information to be disclosed."  "Those assertions are entitled to a presumption of good faith, which [the requester] has not attempted to rebut."